united states v. booker, 543 u.s. 220 (2004)

8/17/2019 United States v. Booker, 543 U.S. 220 (2004)

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543 U.S. 220

125 S.Ct. 738

160 L.Ed.2d 621

UNITED STATES, Petitioner 04-104

v.

Freddie J. BOOKER

UNITED STATES, PETITIONER 04-105

v.

Ducan FANFAN

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2004

Nos. 04-104 and 04-105

Argued October 4, 2004

January 12, 20051

Justice Stevens' dissenting opinion amended January 24, 2005

SYLLABUS BY THE COURT

Under the Federal Sentencing Guidelines, the sentence authorized by the

jury verdict in respondent Booker's drug case was 210-to-262 months in

prison. At the sentencing hearing, the judge found additional facts by a

preponderance of the evidence. Because these findings mandated a

sentence between 360 months and life, the judge gave Booker a 30-year

sentence instead of the 21-year, 10-month, sentence he could haveimposed based on the facts proved to the jury beyond a reasonable doubt.

The Seventh Circuit held that this application of the Guidelines conflicted

with the Apprendi v. New Jersey, 530 U. S. 466, 490, holding that "

[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt." Relying on

Blakely v. Washington, 542 U. S. ___, the court held that the sentence

violated the Sixth Amendment and instructed the District Court either to

sentence Booker within the sentencing range supported by the jury's

findings or to hold a separate sentencing hearing before a jury. In

respondent Fanfan's case, the maximum sentence authorized by the jury


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(a) In addressing Washington State's determinate sentencing scheme, the BlakelyCourt found that Jones v. United States, 526 U. S. 227; Apprendi v. New Jersey, 530

U. S. 466; and Ring v. Arizona, 536 U. S. 584, made clear "that the `statutory

maximum' for Apprendi purposes is the maximum sentence a judge may impose

solely on the basis of the facts reflected in the jury verdict or admitted by the

defendant." 542 U. S., at ___. As Blakely's dissenting opinions recognized, there is

no constitutionally significant distinction between the Guidelines and the

Washington procedure at issue in that case. This conclusion rests on the premise,

common to both systems, that the relevant sentencing rules are mandatory andimpose binding requirements on all sentencing judges. Were the Guidelines merely

advisory -- recommending, but not requiring, the selection of particular sentences in

response to differing sets of facts -- their use would not implicate the Sixth

Amendment. However, that is not the case. Title 18 U. S. C. A. §3553(b) directs

that a court "shall impose a sentence of the kind, and within the range" established

by the Guidelines, subject to departures in specific, limited cases. Because they are

binding on all on judges, this Court has consistently held that the Guidelines have

the force and effect of laws. Further, the availability of a departure where the judge"finds ... an aggravating or mitigating circumstance of a kind, or to a degree, not

adequately taken into consideration by the Sentencing Commission in formulating

the guidelines that should result in a sentence different from that described,"

verdict under the Guidelines was 78 months in prison. At the sentencing

hearing, the District Judge found by a preponderance of the evidence

additional facts authorizing a sentence in the 188-to-235-month range,

which would have required him to impose a 15-or 16-year sentence

instead of the 5 or 6 years authorized by the jury verdict alone. Relying on

Blakely's majority opinion, statements in its dissenting opinions, and the

Solicitor General's brief in Blakely, the judge concluded that he could notfollow the Guidelines and imposed a sentence based solely upon the guilty

verdict in the case. The Government filed a notice of appeal in the First

Circuit and a petition for certiorari before judgment in this Court.

Held: The judgment of the Court of Appeals in No. 04-104 is affirmed,

and the case is remanded. The judgment of the District Court in No. 04-

105 is vacated, and the case is remanded.

No. 04-104, 375 F. 3d 508, affirmed and remanded; and No. 04-105,

vacated and remanded.

Justice Stevens delivered the opinion of the Court in part, concluding that

the Sixth Amendment as construed in Blakely applies to the Federal

Sentencing Guidelines. Pp. 5-20.

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§3553(b)(1), does not avoid the constitutional issue. Departures are unavailable in

most cases because the Commission will have adequately taken all relevant factors

into account, and no departure will be legally permissible. In those instances, the

judge is legally bound to impose a sentence within the Guidelines range. Booker's

case illustrates this point. The jury found him guilty of possessing at least 50 grams

of crack cocaine, based on evidence that he had 92.5 grams. Under those facts, the

Guidelines required a possible 210-to-262-month sentence. To reach Booker's actualsentence -- which was almost 10 years longer -- the judge found that he possessed an

additional 566 grams of crack. Although, the jury never heard any such evidence,

the judge found it to be true by a preponderance of the evidence. Thus, as in Blakely,

"the jury's verdict alone does not authorize the sentence. The judge acquires that

authority only upon finding some additional fact." 542 U. S., at ___. Finally,

because there were no factors the Sentencing Commission failed to adequately

consider, the judge was required to impose a sentence within the higher Guidelines

range. Pp. 5-12.

(b) The Government's arguments for its position that Blakely's reasoning should not

be applied to the Federal Sentencing Guidelines are unpersuasive. The fact that the

Guidelines are promulgated by the Sentencing Commission, rather than Congress, is

constitutionally irrelevant. The Court has not previously considered the question, but

the same Sixth Amendment principles apply to the Sentencing Guidelines. Further,

the Court's pre-Apprendi cases considering the Guidelines are inapplicable, as they

did not consider the application of Apprendi to the Sentencing Guidelines. Finally,

separation of powers concerns are not present here, and were rejected in Mistretta. In

Mistretta the Court concluded that even though the Commission performed political

rather than adjudicatory functions, Congress did not exceed constitutional limitations

in creating the Commission. 488 U. S., at 393, 388. That conclusion remains true

regardless of whether the facts relevant to sentencing are labeled "sentencing

factors" or "elements" of crimes. Pp. 13-20.

Justice Breyer delivered the opinion of the Court in part, concluding that 18 U. S. C.

A. §3553(b)(1), which makes the Federal Sentencing Guidelines mandatory, isincompatible with today's Sixth Amendment "jury trial" holding and therefore must

be severed and excised from the Sentencing Reform Act of 1984 (Act). Section

3742(e), which depends upon the Guidelines' mandatory nature, also must be

severed and excised. So modified, the Act makes the Guidelines effectively

advisory, requiring a sentencing court to consider Guidelines ranges, see §3553(a)

(4), but permitting it to tailor the sentence in light of other statutory concerns, see

§3553(a). Pp. 2-26.

(a) Answering the remedial question requires a determination of what "Congress

would have intended" in light of the Court's constitutional holding. E.g., Denver

Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 767. Here,

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the Court must decide which of two approaches is the more compatible with

Congress' intent as embodied in the Act: (1) retaining the Act (and the Guidelines)

as written, with today's Sixth Amendment requirement engrafted onto it; or (2)

eliminating some of the Act's provisions. Evaluation of the constitutional

requirement's consequences in light of the Act's language, history, and basic

purposes demonstrates that the requirement is not compatible with the Act as written

and that some severance (and excision) is necessary. Congress would likely have preferred the total invalidation of the Act to an Act with the constitutional

requirement engrafted onto it, but would likely have preferred the excision of the

Act's mandatory language to the invalidation of the entire Act. Pp. 2-6.

(b) Several considerations demonstrate that adding the Court's constitutional

requirement onto the Act as currently written would so transform the statutory

scheme that Congress likely would not have intended the Act as so modified to

stand. First, references to "[t]he court" in §3553(a)(1) -- which requires "[t]he court"when sentencing to consider "the nature and circumstances of the offense and the

history and characteristics of the defendant" -- and references to "the judge" in the

Act's history must be read in context to mean "the judge without the jury," not "the

judge working together with the jury." That is made clear by §3661, which removes

typical "jury trial" limitations on "the information" concerning the offender that the

sentencing "court ... may receive." Second, Congress' basic statutory goal of

diminishing sentencing disparity depends for its success upon judicial efforts to

determine, and to base punishment upon, the real conduct underlying the crime of

conviction. In looking to real conduct, federal sentencing judges have long relied

upon a probation officer's presentence report, which is often unavailable until after

the trial. To engraft the Court's constitutional requirement onto the Act would

destroy the system by preventing a sentencing judge from relying upon a presentence

report for relevant factual information uncovered after the trial. Third, the Act, read

to include today's constitutional requirement, would create a system far more

complex than Congress could have intended, thereby greatly complicating the tasks

of the prosecution, defense, judge, and jury. Fourth, plea bargaining would not

significantly diminish the consequences of the Court's constitutional holding for the

operation of the Guidelines, but would make matters worse, leading to sentences that

gave greater weight not to real conduct, but rather to counsel's skill, the prosecutor's

policies, the caseload, and other factors that vary from place to place, defendant to

defendant, and crime to crime. Fifth, Congress would not have enacted sentencing

statutes that make it more difficult to adjust sentences upward than to adjust them

downward, yet that is what the engrafted system would create. For all these reasons,

the Act cannot remain valid in its entirety. Severance and excision are necessary. Pp.

6-15.

(c) The entire Act need not be invalidated, since most of it is perfectly valid. In order

not to "invalidat[e] more of the statute than is necessary," Regan v. Time, Inc., 468

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U. S. 641, 652, the Court must retain those portions of the Act that are (1)

constitutionally valid, ibid., (2) capable of "functioning independently," Alaska

Airlines, Inc. v. Brock, 480 U. S. 678, 684, and (3) consistent with Congress' basic

objectives in enacting the statute, Regan, supra, at 653. Application of these criteria

demonstrates that only §3553(b)(1), which requires sentencing courts to impose a

sentence within the applicable Guidelines range (absent circumstances justifying a

departure), and §3742(e), which provides for de novo review on appeal of departures, must be severed and excised. With these two sections severed (and

statutory cross-references to the two sections consequently invalidated), the rest of

the Act satisfies the Court's constitutional requirement and falls outside the scope of

Apprendi v. New Jersey, 530 U. S. 466. The Act still requires judges to take account

of the Guidelines together with other sentencing goals, see §3553(a)(4); to consider

the Guidelines "sentencing range established for ... the applicable category of

offense committed by the applicable category of defendant," pertinent Sentencing

Commission policy statements, and the need to avoid unwarranted sentencingdisparities and to restitute victims, §§3553(a)(1), (3)-(7); and to impose sentences

that reflect the seriousness of the offense, promote respect for the law, provide just

punishment, afford adequate deterrence, protect the public, and effectively provide

the defendant with needed training and medical care, §3553(a)(2). Moreover, despite

§3553(b)(1)'s absence, the Act continues to provide for appeals from sentencing

decisions (irrespective of whether the trial judge sentences within or outside the

Guidelines range). See §§3742(a) and (b). Excision of §3742(e), which sets forth

appellate review standards, does not pose a critical problem. Appropriate reviewstandards may be inferred from related statutory language, the statute's structure, and

the "sound administration of justice." Pierce v. Underwood, 487 U. S. 552, 559-560.

Here, these factors and the past two decades of appellate practice in cases involving

departures from the Guidelines imply a familiar and practical standard of review:

review for "unreasonable[ness]." See, e.g., 18 U. S. C. §3742(e)(3) (1994 ed.).

Finally, the Act without its mandatory provision and related language remains

consistent with Congress' intent to avoid "unwarranted sentencing disparities ... [and]

maintai[n] sufficient flexibility to permit individualized sentences when warranted,"

28 U. S. C. §991(b)(1)(B), in that the Sentencing Commission remains in place to

perform its statutory duties, see §994, the district courts must consult the Guidelines

and take them into account when sentencing, see 18 U. S. C. §3553(a)(4), and the

courts of appeals review sentencing decisions for unreasonableness. Thus, it is more

consistent with Congress' likely intent (1) to preserve the Act's important pre-

existing elements while severing and excising §§3553(b) and 3742(e) than (2) to

maintain all of the Act's provisions and engraft today's constitutional requirement

onto the statutory scheme. Pp. 15-22.

(d) Other possible remedies -- including, e.g., the parties' proposals that the

Guidelines remain binding in cases other than those in which the Constitution

prohibits judicial factfinding and that the Act's provisions requiring such factfinding

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at sentencing be excised -- are rejected. Pp. 22-24.

(e) On remand in respondent Booker's case, the District Court should impose a

sentence in accordance with today's opinions, and, if the sentence comes before the

Seventh Circuit for review, that court should apply the review standards set forth in

this Court's remedial opinion. In respondent Fanfan's case, the Government (and

Fanfan should he so choose) may seek resentencing under the system set forth intoday's opinions. As these dispositions indicate, today's Sixth Amendment holding

and the Court's remedial interpretation of the Sentencing Act must be applied to all

cases on direct review. See, e.g., Griffith v. Kentucky, 479 U. S. 314, 328. That does

not mean that every sentence will give rise to a Sixth Amendment violation or that

every appeal will lead to a new sentencing hearing. That is because reviewing courts

are expected to apply ordinary prudential doctrines, determining, e.g., whether the

issue was raised below and whether it fails the "plain-error" test. It is also because,

in cases not involving a Sixth Amendment violation, whether resentencing iswarranted or whether it will instead be sufficient to review a sentence for

reasonableness may depend upon application of the harmless-error doctrine. Pp. 24-

25.

Stevens, J., delivered the opinion of the Court in part, in which Scalia, Souter,

Thomas, and Ginsburg, JJ., joined. Breyer, J., delivered the opinion of the Court in

part, in which Rehnquist, C. J., and O'Connor, Kennedy, and Ginsburg, JJ., joined.

Stevens, J., filed an opinion dissenting in part, in which Souter, J., joined, and in

which Scalia, J., joined except for Part III and footnote 17. Scalia, J., and Thomas,J., filed opinions dissenting in part. Breyer, J., filed an opinion dissenting in part, in

which Rehnquist, C. J., and O'Connor and Kennedy, JJ., joined.

On Writ Of Certiorari To The United States Court Of Appeals For The Seventh

Circuit On Writ of Certiorari Before Judgment to the United States Court of Appeals

for the First Circuit Court Below: 375 F. 3d 508

Acting Solicitor General Clement argued the cause for the United States in bothcases. With him on the brief were Assistant Attorney General Wray, Deputy

Solicitor General Dreeben, James A. Feldman, Dan Himmelfarb, and Nina

Goodman.

T. Christopher Kelly argued the cause for respondent in No. 04-104. With him on

the brief was Dean A. Strang. Rosemary Curran Scapicchio argued the cause for

respondent in No. 04-105. With her on the brief were Carter G. Phillips, Jeffrey T.

Green, Eric A. Shumsky, and Martin G. Weinberg.

Briefs of amici curiae urging reversal in both cases were filed for the United States

Sentencing Commission by James K. Robinson, Charles R. Tetzlaff, and Pamela O.

Barron; and for the Honorable Orrin G. Hatch et al. by Gregory G. Garre.

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Briefs of amici curiae urging affirmance in both cases were filed for Families

Against Mandatory Minimums by Gregory L. Poe, Roy T. Englert, Jr., Max

Huffman, and Mary Price; for the Federal Public Defender, Northern District of

Texas, by Ira R. Kirkendoll and Carlos R. Cardona; for the National Association of

Criminal Defense Lawyers by Samuel J. Buffone, David O. Stewart, Thomas C.

Goldstein, Amy Howe, and David M. Porter; for the National Association of Federal

Defenders by Paul M. Rashkind, Carol A. Brook, Henry J. Bemporad, and FrancesH. Pratt; for the New York Council of Defense Lawyers by Alexandra A. E. Shapiro

and Lewis J. Liman; for the Washington Legal Foundation et al. by Donald B.

Verrilli, Jr., Elaine J. Goldenberg, Daniel J. Popeo, and Paul D. Kamenar; and for

Thomas F. Liotti, by Mr. Liotti, pro se.

John S. Martin, Jr., filed a brief for an Ad Hoc Group of Former Federal Judges as

amici curiae in both cases.

The opinion of the court was delivered by: Justice Stevens2

543 U. S. 220 (2005)

The question presented in each of these cases is whether an application of the

Federal Sentencing Guidelines violated the Sixth Amendment. In each case, the

courts below held that binding rules set forth in the Guidelines limited the severity

of the sentence that the judge could lawfully impose on the defendant based on the

facts found by the jury at his trial. In both cases the courts rejected, on the basis of our decision in Blakely v. Washington, 542 U. S. ___ (2004), the Government's

recommended application of the Sentencing Guidelines because the proposed

sentences were based on additional facts that the sentencing judge found by a

preponderance of the evidence. We hold that both courts correctly concluded that the

Sixth Amendment as construed in Blakely does apply to the Sentencing Guidelines.

In a separate opinion authored by Justice Breyer, the Court concludes that in light of

this holding, two provisions of the Sentencing Reform Act of 1984 (SRA) that have

the effect of making the Guidelines mandatory must be invalidated in order to allowthe statute to operate in a manner consistent with congressional intent.

I.

Respondent Booker was charged with possession with intent to distribute at least 50

grams of cocaine base (crack). Having heard evidence that he had 92.5 grams in his

duffel bag, the jury found him guilty of violating 21 U. S. C. §841(a)(1). That statute

prescribes a minimum sentence of 10 years in prison and a maximum sentence of life

for that offense. §841(b)(1)(A)(iii).

Based upon Booker's criminal history and the quantity of drugs found by the jury,

the Sentencing Guidelines required the District Court Judge to select a "base"

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sentence of not less than 210 nor more than 262 months in prison. See United States

Sentencing Commission, Guidelines Manual §§2D1.1(c)(4), 4A1.1 (Nov. 2003)

(hereinafter USSG). The judge, however, held a post-trial sentencing proceeding and

concluded by a preponderance of the evidence that Booker had possessed an

additional 566 grams of crack and that he was guilty of obstructing justice. Those

findings mandated that the judge select a sentence between 360 months and life

imprisonment; the judge imposed a sentence at the low end of the range. Thus,instead of the sentence of 21 years and 10 months that the judge could have imposed

on the basis of the facts proved to the jury beyond a reasonable doubt, Booker

received a 30-year sentence.

Over the dissent of Judge Easterbrook, the Court of Appeals for the Seventh Circuit

held that this application of the Sentencing Guidelines conflicted with our holding in

Apprendi v. New Jersey, 530 U. S. 466, 490 (2000), that "[o]ther than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt." 375 F. 3d 508, 510 (2004). The majority relied on our holding in

Blakely v. Washington, 542 U. S. ___ (2004), that "the `statutory maximum' for

Apprendi purposes is the maximum sentence a judge may impose solely on the basis

of the facts reflected in the jury verdict or admitted by the defendant." Id., at ___

(slip op., at 7). The court held that the sentence violated the Sixth Amendment, and

remanded with instructions to the District Court either to sentence respondent within

the sentencing range supported by the jury's findings or to hold a separate sentencing

hearing before a jury.

Respondent Fanfan was charged with conspiracy to distribute and to possess with

intent to distribute at least 500 grams of cocaine in violation of 21 U. S. C. §§846,

841(a)(1), and 841(b)(1)(B)(ii). He was convicted by the jury after it answered

"Yes" to the question "Was the amount of cocaine 500 or more grams?" App. C to

Pet. for Cert. in No. 04-105, p. 15a. Under the Guidelines, without additional

findings of fact, the maximum sentence authorized by the jury verdict was

imprisonment for 78 months.

A few days after our decision in Blakely, the trial judge conducted a sentencing

hearing at which he found additional facts that, under the Guidelines, would have

authorized a sentence in the 188-to-235 month range. Specifically, he found that

respondent Fanfan was responsible for 2.5 kilograms of cocaine powder, and 261.6

grams of crack. He also concluded that respondent had been an organizer, leader,

manager, or supervisor in the criminal activity. Both findings were made by a

preponderance of the evidence. Under the Guidelines, these additional findingswould have required an enhanced sentence of 15 or 16 years instead of the 5 or 6

years authorized by the jury verdict alone. Relying not only on the majority opinion

in Blakely, but also on the categorical statements in the dissenting opinions and in

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the Solicitor General's brief in Blakely, see App. A to Pet. for Cert. in No. 04-105,

pp. 6a-7a, the judge concluded that he could not follow the particular provisions of

the Sentencing Guidelines "which involve drug quantity and role enhancement," id.,

at 11a. Expressly refusing to make "any blanket decision about the federal

guidelines," he followed the provisions of the Guidelines that did not implicate the

Sixth Amendment by imposing a sentence on respondent "based solely upon the

guilty verdict in this case." Ibid.

Following the denial of its motion to correct the sentence in Fanfan's case, the

Government filed a notice of appeal in the Court of Appeals for the First Circuit, and

a petition in this Court for a writ of certiorari before judgment. Because of the

importance of the questions presented, we granted that petition, 542 U. S. ___

(2004), as well as a similar petition filed by the Government in Booker's case, 542

U. S. ___ (2004). In both petitions, the Government asks us to determine whether

our Apprendi line of cases applies to the Sentencing Guidelines, and if so, what portions of the Guidelines remain in effect.3

In this opinion, we explain why we agree with the lower courts' answer to the first

question. In a separate opinion for the Court, Justice Breyer explains the Court's

answer to the second question.

II.

It has been settled throughout our history that the Constitution protects everycriminal defendant "against conviction except upon proof beyond a reasonable doubt

of every fact necessary to constitute the crime with which he is charged." In re

Winship, 397 U. S. 358, 364 (1970). It is equally clear that the "Constitution gives a

criminal defendant the right to demand that a jury find him guilty of all the elements

of the crime with which he is charged." United States v. Gaudin, 515 U. S. 506, 511

(1995). These basic precepts, firmly rooted in the common law, have provided the

basis for recent decisions interpreting modern criminal statutes and sentencing

procedures.

In Jones v. United States, 526 U. S. 227, 230 (1999), we considered the federal

carjacking statute, which provides three different maximum sentences depending on

the extent of harm to the victim: 15 years in jail if there was no serious injury to a

victim, 25 years if there was "serious bodily injury," and life in prison if death

resulted. 18 U. S. C. §2119 (1988 ed., Supp. V). In spite of the fact that the statute

"at first glance has a look to it suggesting [that the provisions relating to the extent of

harm to the victim] are only sentencing provisions," 526 U. S., at 232, we concludedthat the harm to the victim was an element of the crime. That conclusion was

supported by the statutory text and structure, and was influenced by our desire to

avoid the constitutional issues implicated by a contrary holding, which would have

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reduced the jury's role "to the relative importance of low-level gatekeeping." Id., at

244. Foreshadowing the result we reach today, we noted that our holding was

consistent with a "rule requiring jury determination of facts that raise a sentencing

ceiling" in state and federal sentencing guidelines systems. Id., at 251, n. 11.

In Apprendi v. New Jersey, 530 U. S. 466 (2000), the defendant pleaded guilty to

second-degree possession of a firearm for an unlawful purpose, which carried a prison term of 5-to-10 years. Thereafter, the trial court found that his conduct had

violated New Jersey's "hate crime" law because it was racially motivated, and

imposed a 12-year sentence. This Court set aside the enhanced sentence. We held:

"Other than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt." Id., at 490.

The fact that New Jersey labeled the hate crime a "sentence enhancement" rather

than a separate criminal act was irrelevant for constitutional purposes. Id., at 478. As

a matter of simple justice, it seemed obvious that the procedural safeguards designed

to protect Apprendi from punishment for the possession of a firearm should apply

equally to his violation of the hate crime statute. Merely using the label "sentence

enhancement" to describe the latter did not provide a principled basis for treating the

two crimes differently. Id., at 476.

In Ring v. Arizona, 536 U. S. 584 (2002), we reaffirmed our conclusion that the

characterization of critical facts is constitutionally irrelevant. There, we held that itwas impermissible for "the trial judge, sitting alone" to determine the presence or

absence of the aggravating factors required by Arizona law for imposition of the

death penalty. Id., at 588-589. "If a State makes an increase in a defendant's

authorized punishment contingent on the finding of a fact, that fact -- no matter how

the State labels it -- must be found by a jury beyond a reasonable doubt." Id., at 602.

Our opinion made it clear that ultimately, while the procedural error in Ring's case

might have been harmless because the necessary finding was implicit in the jury's

guilty verdict, id., at 609, n. 7, "the characterization of a fact or circumstance as an`element' or a `sentencing factor' is not determinative of the question `who decides,'

judge or jury," id., at 605.

In Blakely v. Washington, 542 U. S. ___ (2004), we dealt with a determinate

sentencing scheme similar to the Federal Sentencing Guidelines. There the defendant

pleaded guilty to kidnaping, a class B felony punishable by a term of not more than

10 years. Other provisions of Washington law, comparable to the Federal Sentencing

Guidelines, mandated a "standard" sentence of 49-to-53 months, unless the judgefound aggravating facts justifying an exceptional sentence. Although the prosecutor

recommended a sentence in the standard range, the judge found that the defendant

had acted with " `deliberate cruelty' " and sentenced him to 90 months. Id., at ___

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(slip op., at 3).

For reasons explained in Jones, Apprendi, and Ring, the requirements of the Sixth

Amendment were clear. The application of Washington's sentencing scheme violated

the defendant's right to have the jury find the existence of " `any particular fact' "

that the law makes essential to his punishment. 542 U. S., at ___ (slip op., at 5). That

right is implicated whenever a judge seeks to impose a sentence that is not solely based on "facts reflected in the jury verdict or admitted by the defendant." Id., at ___

(slip op., at 7) (emphasis deleted). We rejected the State's argument that the jury

verdict was sufficient to authorize a sentence within the general 10-year sentence for

Class B felonies, noting that under Washington law, the judge was required to find

additional facts in order to impose the greater 90-month sentence. Our precedents,

we explained, make clear "that the `statutory maximum' for Apprendi purposes is

the maximum sentence a judge may impose solely on the basis of the facts reflected

in the jury verdict or admitted by the defendant." Ibid. (slip op., at 7) (emphasis inoriginal). The determination that the defendant acted with deliberate cruelty, like the

determination in Apprendi that the defendant acted with racial malice, increased the

sentence that the defendant could have otherwise received. Since this fact was found

by a judge using a preponderance of the evidence standard, the sentence violated

Blakely's Sixth Amendment rights.

As the dissenting opinions in Blakely recognized, there is no distinction of

constitutional significance between the Federal Sentencing Guidelines and the

Washington procedures at issue in that case. See, e.g., 542 U. S., at ___ (opinion of O'Connor, J.) (slip op., at 12) ("The structure of the Federal Guidelines likewise does

not, as the Government half-heartedly suggests, provide any grounds for distinction.

... If anything, the structural differences that do exist make the Federal Guidelines

more vulnerable to attack"). This conclusion rests on the premise, common to both

systems, that the relevant sentencing rules are mandatory and impose binding

requirements on all sentencing judges.

If the Guidelines as currently written could be read as merely advisory provisionsthat recommended, rather than required, the selection of particular sentences in

response to differing sets of facts, their use would not implicate the Sixth

Amendment. We have never doubted the authority of a judge to exercise broad

discretion in imposing a sentence within a statutory range. See Apprendi, 530 U. S.,

at 481; Williams v. New York, 337 U. S. 241, 246 (1949). Indeed, everyone agrees

that the constitutional issues presented by these cases would have been avoided

entirely if Congress had omitted from the SRA the provisions that make the

Guidelines binding on district judges; it is that circumstance that makes the Court'sanswer to the second question presented possible. For when a trial judge exercises

his discretion to select a specific sentence within a defined range, the defendant has

no right to a jury determination of the facts that the judge deems relevant.

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The Guidelines as written, however, are not advisory; they are mandatory and

binding on all judges.4 While subsection (a) of §3553 of the sentencing statute5 lists

the Sentencing Guidelines as one factor to be considered in imposing a sentence,

subsection (b) directs that the court "shall impose a sentence of the kind, and within

the range" established by the Guidelines, subject to departures in specific, limited

cases. Because they are binding on judges, we have consistently held that the

Guidelines have the force and effect of laws. See, e.g., Mistretta v. United States,488 U. S. 361, 391 (1989); Stinson v. United States, 508 U. S. 36, 42 (1993).

The availability of a departure in specified circumstances does not avoid the

constitutional issue, just as it did not in Blakely itself. The Guidelines permit

departures from the prescribed sentencing range in cases in which the judge "finds

that there exists an aggravating or mitigating circumstance of a kind, or to a degree,

not adequately taken into consideration by the Sentencing Commission in

formulating the guidelines that should result in a sentence different from thatdescribed." 18 U. S. C. A. §3553(b)(1) (Supp. 2004). At first glance, one might

believe that the ability of a district judge to depart from the Guidelines means that

she is bound only by the statutory maximum. Were this the case, there would be no

Apprendi problem. Importantly, however, departures are not available in every case,

and in fact are unavailable in most. In most cases, as a matter of law, the

Commission will have adequately taken all relevant factors into account, and no

departure will be legally permissible. In those instances, the judge is bound to

impose a sentence within the Guidelines range. It was for this reason that we

rejected a similar argument in Blakely, holding that although the Washington statute

allowed the judge to impose a sentence outside the sentencing range for "

`substantial and compelling reasons,' " that exception was not available for Blakely

himself. 542 U. S., at ___ (slip op., at 3). The sentencing judge would have been

reversed had he invoked the departure section to justify the sentence.

Booker's case illustrates the mandatory nature of the Guidelines. The jury convicted

him of possessing at least 50 grams of crack in violation of 21 U. S. C. §841(b)(1)

(A)(iii) based on evidence that he had 92.5 grams of crack in his duffel bag. Under these facts, the Guidelines specified an offense level of 32, which, given the

defendant's criminal history category, authorized a sentence of 210-to-262 months.

See USSG §2D1.1(c)(4). Booker's is a run-of-the-mill drug case, and does not

present any factors that were inadequately considered by the Commission. The

sentencing judge would therefore have been reversed had he not imposed a sentence

within the level 32 Guidelines range.

Booker's actual sentence, however, was 360 months, almost 10 years longer than theGuidelines range supported by the jury verdict alone. To reach this sentence, the

judge found facts beyond those found by the jury: namely, that Booker possessed

566 grams of crack in addition to the 92.5 grams in his duffel bag. The jury never

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heard any evidence of the additional drug quantity, and the judge found it true by a

preponderance of the evidence. Thus, just as in Blakely, "the jury's verdict alone

does not authorize the sentence. The judge acquires that authority only upon finding

some additional fact." 542 U. S., at ___ (slip op., at 9). There is no relevant

distinction between the sentence imposed pursuant to the Washington statutes in

Blakely and the sentences imposed pursuant to the Federal Sentencing Guidelines in

these cases.

In his dissent, post, at 2-4, Justice Breyer argues on historical grounds that the

Guidelines scheme is constitutional across the board. He points to traditional judicial

authority to increase sentences to take account of any unusual blameworthiness in

the manner employed in committing a crime, an authority that the Guidelines require

to be exercised consistently throughout the system. This tradition, however, does not

provide a sound guide to enforcement of the Sixth Amendment's guarantee of a jury

trial in today's world.

It is quite true that once determinate sentencing had fallen from favor, American

judges commonly determined facts justifying a choice of a heavier sentence on

account of the manner in which particular defendants acted. Apprendi, 530 U. S., at

481. In 1986, however, our own cases first recognized a new trend in the legislative

regulation of sentencing when we considered the significance of facts selected by

legislatures that not only authorized, or even mandated, heavier sentences than

would otherwise have been imposed, but increased the range of sentences possible

for the underlying crime. See McMillan v. Pennsylvania, 477 U. S. 79, 87-88(1986). Provisions for such enhancements of the permissible sentencing range

reflected growing and wholly justified legislative concern about the proliferation and

variety of drug crimes and their frequent identification with firearms offences.

The effect of the increasing emphasis on facts that enhanced sentencing ranges,

however, was to increase the judge's power and diminish that of the jury. It became

the judge, not the jury, that determined the upper limits of sentencing, and the facts

determined were not required to be raised before trial or proved by more than a preponderance.

As the enhancements became greater, the jury's finding of the underlying crime

became less significant. And the enhancements became very serious indeed. See,

e.g., Jones, 526 U. S., at 330 (judge's finding increased the maximum sentence from

15 to 25 years); respondent Booker (from 262 months to a life sentence); respondent

Fanfan (from 78 to 235 months); United States v. Rodriguez, 73 F. 3d 161, 162-163

(CA7 1996) (Posner, C. J., dissenting from denial of rehearing en banc) (fromapproximately 54 months to a life sentence); United States v. Hammoud, 381 F. 3d

316, 361-362 (CA4 2004) (en banc) (Motz, J., dissenting) (actual sentence increased

from 57 months to 155 years).

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As it thus became clear that sentencing was no longer taking place in the tradition

that Justice Breyer invokes, the Court was faced with the issue of preserving an

ancient guarantee under a new set of circumstances. The new sentencing practice

forced the Court to address the question how the right of jury trial could be

preserved, in a meaningful way guaranteeing that the jury would still stand between

the individual and the power of the government under the new sentencing regime.

And it is the new circumstances, not a tradition or practice that the newcircumstances have superseded, that have led us to the answer first considered in

Jones and developed in Apprendi and subsequent cases culminating with this one. It

is an answer not motivated by Sixth Amendment formalism, but by the need to

preserve Sixth Amendment substance.

III.

The Government advances three arguments in support of its submission that we

should not apply our reasoning in Blakely to the Federal Sentencing Guidelines. It

contends that Blakely is distinguishable because the Guidelines were promulgated

by a commission rather than the Legislature; that principles of stare decisis require

us to follow four earlier decisions that are arguably inconsistent with Blakely; and

that the application of Blakely to the Guidelines would conflict with

separation of powers principles reflected in Mistretta v. United States, 488 U. S. 361

(1989). These arguments are unpersuasive.

Commission vs. Legislature:

In our judgment the fact that the Guidelines were promulgated by the Sentencing

Commission, rather than Congress, lacks constitutional significance. In order to

impose the defendants' sentences under the Guidelines, the judges in these cases

were required to find an additional fact, such as drug quantity, just as the judge

found the additional fact of serious bodily injury to the victim in Jones. As far as the

defendants are concerned, they face significantly higher sentences -- in Booker'scase almost 10 years higher -- because a judge found true by a preponderance of the

evidence a fact that was never submitted to the jury. Regardless of whether

Congress or a Sentencing Commission concluded that a particular fact must be

proved in order to sentence a defendant within a particular range, "[t]he Framers

would not have thought it too much to demand that, before depriving a man of [ten]

more years of his liberty, the State should suffer the modest inconvenience of

submitting its accusation to `the unanimous suffrage of twelve of his equals and

neighbours,' rather than a lone employee of the State." Blakely, 542 U. S., at ___ (slip op., at 18) (citations omitted).

The Government correctly notes that in Apprendi we referred to " `any fact that

increases the penalty for a crime beyond the prescribed statutory maximum ... .' "

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Brief for United States 15 (quoting Apprendi, 530 U. S., at 490 (emphasis in Brief

for United States)). The simple answer, of course, is that we were only considering a

statute in that case; we expressly declined to consider the Guidelines. See Apprendi,

530 U. S., at 497, n. 21. It was therefore appropriate to state the rule in that case in

terms of a "statutory maximum" rather than answering a question not properly before

us.

More important than the language used in our holding in Apprendi are the principles

we sought to vindicate. Those principles are unquestionably applicable to the

Guidelines. They are not the product of recent innovations in our jurisprudence, but

rather have their genesis in the ideals our constitutional tradition assimilated from

the common law. See Jones, 526 U. S., at 244-248. The Framers of the Constitution

understood the threat of "judicial despotism" that could arise from "arbitrary

punishments upon arbitrary convictions" without the benefit of a jury in criminal

cases. The Federalist No. 83, p. 499 (C. Rossiter ed. 1961) (A. Hamilton). TheFounders presumably carried this concern from England, in which the right to a jury

trial had been enshrined since the Magna Carta. As we noted in Apprendi:

"[T]he historical foundation for our recognition of these principles extends down

centuries into the common law. `[T]o guard against a spirit of oppression and

tyranny on the part of rulers,' and `as the great bulwark of [our] civil and political

liberties,' trial by jury has been understood to require that `the truth of every

accusation, whether preferred in the shape of indictment, information, or appeal,

should afterwards be confirmed by the unanimous suffrage of twelve of [thedefendant's] equals and neighbors ... .' " 530 U. S., at 477 (citations omitted).

Regardless of whether the legal basis of the accusation is in a statute or in guidelines

promulgated by an independent commission, the principles behind the jury trial right

are equally applicable.

Stare Decisis:

The Government next argues that four recent cases preclude our application of

Blakely to the Sentencing Guidelines. We disagree. In United States v. Dunnigan,

507 U. S. 87 (1993), we held that the provisions of the Guidelines that require a

sentence enhancement if the judge determines that the defendant committed perjury

do not violate the privilege of the accused to testify on her own behalf. There was no

contention that the enhancement was invalid because it resulted in a more severe

sentence than the jury verdict had authorized. Accordingly, we found this case

indistinguishable from United States v. Grayson, 438 U. S. 41 (1978), a pre-Guidelines case in which we upheld a similar sentence increase. Applying Blakely to

the Guidelines would invalidate a sentence that relied on such an enhancement if the

resulting sentence was outside the range authorized by the jury verdict.

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Nevertheless, there are many situations in which the district judge might find that

the enhancement is warranted, yet still sentence the defendant within the range

authorized by the jury. See post, at 6-9. (Stevens, J., dissenting in part). Thus, while

the reach of Dunnigan may be limited, we need not overrule it.

In Witte v. United States, 515 U. S. 389 (1995), we held that the Double Jeopardy

Clause did not bar a prosecution for conduct that had provided the basis for anenhancement of the defendant's sentence in a prior case. "We concluded that

`consideration of information about the defendant's character and conduct at

sentencing does not result in "punishment" for any offense other than the one of

which the defendant was convicted.' Rather, the defendant is `punished only for the

fact that the present offense was carried out in a manner that warrants increased

punishment ... .' " United States v. Watts, 519 U. S. 148, 155 (1997) (per curiam)

(emphasis omitted) (quoting Witte, 515 U. S., at 415, 401, 403). In Watts, relying on

Witte, we held that the Double Jeopardy Clause permitted a court to consider acquitted conduct in sentencing a defendant under the Guidelines. In neither Witte

nor Watts was there any contention that the sentencing enhancement had exceeded

the sentence authorized by the jury verdict in violation of the Sixth Amendment. The

issue we confront today simply was not presented.6

Finally, in Edwards v. United States, 523 U. S. 511 (1998), the Court held that a

jury's general verdict finding the defendants guilty of a conspiracy involving either

cocaine or crack supported a sentence based on their involvement with both drugs.

Even though the indictment had charged that their conspiracy embraced both, theyargued on appeal that the verdict limited the judge's sentencing authority. We

recognized that the defendants' statutory and constitutional claims might have had

merit if it had been possible to argue that their crack-related activities were not part

of the same conspiracy as their cocaine activities. But they failed to make that

argument, and, based on our review of the record which showed "a series of

interrelated drug transactions involving both cocaine and crack," we concluded that

no such claim could succeed.7 Id., at 515.

None of our prior cases is inconsistent with today's decision. Stare decisis does not

compel us to limit Blakely's holding.

Separation of Powers:

Finally, the Government and, to a lesser extent, Justice Breyer's dissent, argue that

any holding that would require Guidelines sentencing factors to be proved to a jury

beyond a reasonable doubt would effectively transform them into a code definingelements of criminal offenses. The result, according to the Government, would be an

unconstitutional grant to the Sentencing Commission of the inherently legislative

power to define criminal elements.

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There is no merit to this argument because the Commission's authority to identify

the facts relevant to sentencing decisions and to determine the impact of such facts

on federal sentences is precisely the same whether one labels such facts "sentencing

factors" or "elements" of crimes. Our decision in Mistretta, 488 U. S., at 371,

upholding the validity of the delegation of that authority, is unaffected by the

characterization of such facts, or by the procedures used to find such facts in

particular sentencing proceedings. Indeed, we rejected a similar argument in Jones:

"Contrary to the dissent's suggestion, the constitutional proposition that drives our

concern in no way `call[s] into question the principle that the definition of the

elements of a criminal offense is entrusted to the legislature.' The constitutional

guarantees that give rise to our concern in no way restrict the ability of legislatures

to identify the conduct they wish to characterize as criminal or to define the facts

whose proof is essential to the establishment of criminal liability. The constitutional

safeguards that figure in our analysis concern not the identity of the elementsdefining criminal liability but only the required procedures for finding the facts that

determine the maximum permissible punishment; these are the safeguards going to

the formality of notice, the identity of the factfinder, and the burden of proof." 526

U. S., at 243, n. 6.

Our holding today does not call into question any aspect of our decision in Mistretta.

That decision was premised on an understanding that the Commission, rather than

performing adjudicatory functions, instead makes political and substantive

decisions. 488 U. S., at 393. We noted that the promulgation of the Guidelines wasmuch like other activities in the Judicial Branch, such as the creation of the Federal

Rules of Evidence, all of which are non-adjudicatory activities. Id., at 387. We also

noted that "Congress may delegate to the Judicial Branch nonadjudicatory functions

that do not trench upon the prerogatives of another Branch and that are appropriate

to the central mission of the Judiciary." Id., at 388. While we recognized that the

Guidelines were more substantive than the Rules of Evidence or other

nonadjudicatory functions delegated to the Judicial Branch, we nonetheless

concluded that such a delegation did not exceed Congress' powers.

Further, a recognition that the Commission did not exercise judicial authority, but

was more properly thought of as exercising some sort of legislative power, ibid., was

essential to our holding. If the Commission in fact performed adjudicatory functions,

it would have violated Article III because some of the members were not Article III

judges. As we explained:

"[T]he `practical consequences' of locating the Commission within the JudicialBranch pose no threat of undermining the integrity of the Judicial Branch or of

expanding the powers of the Judiciary beyond constitutional bounds by uniting

within the Branch the political or quasi-legislative power of the Commission with

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the judicial power of the courts... . [The Commission's] powers are not united with

the powers of the Judiciary in a way that has meaning for separation-of-powers

analysis. Whatever constitutional problems might arise if the powers of the

Commission were vested in a court, the Commission is not a court, does not exercise

judicial power, and is not controlled by or accountable to members of the Judicial

Branch." Id., at 393.

We have thus always recognized the fact that the Commission is an independent

agency that exercises policy-making authority delegated to it by Congress. Nothing

in our holding today is inconsistent with our decision in Mistretta.

IV.

All of the foregoing support our conclusion that our holding in Blakely applies to the

Sentencing Guidelines. We recognize, as we did in Jones, Apprendi, and Blakely,

that in some cases jury factfinding may impair the most expedient and efficientsentencing of defendants. But the interest in fairness and reliability protected by the

right to a jury trial -- a common-law right that defendants enjoyed for centuries and

that is now enshrined in the Sixth Amendment -- has always outweighed the interest

in concluding trials swiftly. Blakely, 542 U. S., at ___ (slip op., at 17). As

Blackstone put it:

"[H]owever convenient these [new methods of trial] may appear at first (as

doubtless all arbitrary powers, well executed, are the most convenient) yet let it beagain remembered, that delays, and little inconveniences in the forms of justice, are

the price that all free nations must pay for their liberty in more substantial matters;

that these inroads upon this sacred bulwark of the nation are fundamentally opposite

to the spirit of our constitution; and that, though begun in trifles, the precedent may

gradually increase and spread, to the utter disuse of juries in questions of the most

momentous concerns." 4 Commentaries on the Laws of England 343-344 (1769).

Accordingly, we reaffirm our holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.

Justice Breyer delivered the opinion of the Court in part.8

The first question that the Government has presented in these cases is the following:

"Whether the Sixth Amendment is violated by the imposition of an enhancedsentence under the United States Sentencing Guidelines based on the sentencing

judge's determination of a fact (other than a prior conviction) that was not found by

the jury or admitted by the defendant." Pet. for Cert. in No. 04-104, p. I.

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The Court, in an opinion by Justice Stevens, answers this question in the affirmative.

Applying its decisions in Apprendi v. New Jersey, 530 U. S. 466 (2000), and

Blakely v. Washington, 542 U. S. ___ (2004), to the Federal Sentencing Guidelines,

the Court holds that, in the circumstances mentioned, the Sixth Amendment requires

juries, not judges, to find facts relevant to sentencing. See ante, at 1-2, 20 (Stevens,

J., opinion of the Court).

We here turn to the second question presented, a question that concerns the remedy.

We must decide whether or to what extent, "as a matter of severability analysis," the

Guidelines "as a whole" are "inapplicable ... such that the sentencing court must

exercise its discretion to sentence the defendant within the maximum and minimum

set by statute for the offense of conviction." Pet. for Cert. in No. 04-104, p. I.

We answer the question of remedy by finding the provision of the federal sentencing

statute that makes the Guidelines mandatory, 18 U. S. C. A. §3553(b)(1) (Supp.

2004), incompatible with today's constitutional holding. We conclude that this

provision must be severed and excised, as must one other statutory section, §3742(e)

(main ed. and Supp. 2004), which depends upon the Guidelines' mandatory nature.

So modified, the Federal Sentencing Act, see Sentencing Reform Act of 1984, as

amended, 18 U. S. C. §3551 et seq., 28 U. S. C. §991 et seq., makes the Guidelines

effectively advisory. It requires a sentencing court to consider Guidelines ranges, see

18 U. S. C. A. §3553(a)(4) (Supp. 2004), but it permits the court to tailor the

sentence in light of other statutory concerns as well, see §3553(a) (Supp. 2004).

I.

We answer the remedial question by looking to legislative intent. See, e.g.,

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 191 (1999);

Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987); Regan v. Time, Inc., 468

U. S. 641, 653 (1984) (plurality opinion). We seek to determine what "Congress

would have intended" in light of the Court's constitutional holding. Denver Area Ed.

Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 767 (1996) (pluralityopinion) ("Would Congress still have passed" the valid sections "had it known"

about the constitutional invalidity of the other portions of the statute? (internal

quotation marks omitted)). In this instance, we must determine which of the two

following remedial approaches is the more compatible with the legislature's intent as

embodied in the 1984 Sentencing Act.

One approach, that of Justice Stevens' dissent, would retain the Sentencing Act (and

the Guidelines) as written, but would engraft onto the existing system today's SixthAmendment "jury trial" requirement. The addition would change the Guidelines by

preventing the sentencing court from increasing a sentence on the basis of a fact that

the jury did not find (or that the offender did not admit).

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The other approach, which we now adopt, would (through severance and excision of

two provisions) make the Guidelines system advisory while maintaining a strong

connection between the sentence imposed and the offender's real conduct -- a

connection important to the increased uniformity of sentencing that Congress

intended its Guidelines system to achieve.

Both approaches would significantly alter the system that Congress designed. Buttoday's constitutional holding means that it is no longer possible to maintain the

judicial factfinding that Congress thought would underpin the mandatory Guidelines

system that it sought to create and that Congress wrote into the Act in 18 U. S. C. A.

§§3553(a) and 3661 (main ed. and Supp. 2004). Hence we must decide whether we

would deviate less radically from Congress' intended system (1) by superimposing

the constitutional requirement announced today or (2) through elimination of some

provisions of the statute.

To say this is not to create a new kind of severability analysis. Post, at 21-22

(Stevens, J., dissenting). Rather, it is to recognize that sometimes severability

questions (questions as to how, or whether, Congress would intend a statute to

apply) can arise when a legislatively unforeseen constitutional problem requires

modification of a statutory provision as applied in a significant number of instances.

Compare, e.g., Welsh v. United States, 398 U. S. 333, 361 (1970) (Harlan, J.,

concurring in result) (explaining that when a statute is defective because of its

failure to extend to some group a constitutionally required benefit, the court may

"either declare it a nullity" or "extend" the benefit "to include those who areaggrieved by exclusion"); Heckler v. Mathews, 465 U. S. 728, 739, n. 5 (1984)

("Although ... ordinarily `extension, rather than nullification, is the proper course,'

the court should not, of course, `use its remedial powers to circumvent the intent of

the legislature ... .' " (quoting Califano v. Westcott, 443 U. S. 76, 89 (1979) and id.

at 94 (Powell, J., concurring in part and dissenting in part) (citation omitted))); Sloan

v. Lemon, 413 U. S. 825, 834 (1973) (striking down entire Pennsylvania tuition

reimbursement statute because to eliminate only unconstitutional applications

"would be to create a program quite different from the one the legislature actuallyadopted"). See also post, at 9, 11 (Thomas, J., dissenting) ("[S]everability questions"

can "arise from unconstitutional applications" of statutes, and such a question "is

squarely presented" here); Vermeule, Saving Constructions, 85 Geo. L. J. 1945,

1950, n. 26 (1997).

In today's context -- a highly complex statute, interrelated provisions, and a

constitutional requirement that creates fundamental change -- we cannot assume that

Congress, if faced with the statute's invalidity in key applications, would have preferred to apply the statute in as many other instances as possible. Neither can we

determine likely congressional intent mechanically. We cannot simply approach the

problem grammatically, say, by looking to see whether the constitutional

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requirement and the words of the Act are linguistically compatible.

Nor do simple numbers provide an answer. It is, of course, true that the numbers

show that the constitutional jury trial requirement would lead to additional

decisionmaking by juries in only a minority of cases. See post, at 7 (Stevens, J.,

dissenting). Prosecutors and defense attorneys would still resolve the lion's share of

criminal matters through plea bargaining, and plea bargaining takes place without a jury. See ibid. Many of the rest involve only simple issues calling for no upward

Guidelines adjustment. See post, at 5. And in at least some of the remainder, a judge

may find adequate room to adjust a sentence within the single Guidelines range to

which the jury verdict points, or within the overlap between that range and the next

highest. See post, at 8-9.

But the constitutional jury trial requirement would nonetheless affect every case. It

would affect decisions about whether to go to trial. It would affect the content of

plea negotiations. It would alter the judge's role in sentencing. Thus we must

determine likely intent not by counting proceedings, but by evaluating the

consequences of the Court's constitutional requirement in light of the Act's language,

its history, and its basic purposes.

While reasonable minds can, and do, differ about the outcome, we conclude that the

constitutional jury trial requirement is not compatible with the Act as written and

that some severance and excision are necessary. In Part II, infra, we explain the

incompatibility. In Part III, infra, we describe the necessary excision. In Part IV,infra, we explain why we have rejected other possibilities. In essence, in what

follows, we explain both (1) why Congress would likely have preferred the total

invalidation of the Act to an Act with the Court's Sixth Amendment requirement

engrafted onto it, and (2) why Congress would likely have preferred the excision of

some of the Act, namely the Act's mandatory language, to the invalidation of the

entire Act. That is to say, in light of today's holding, we compare maintaining the

Act as written with jury factfinding added (the dissenters' proposed remedy) to the

total invalidation of the statute, and conclude that Congress would have preferredthe latter. We then compare our own remedy to the total invalidation of the statute,

and conclude that Congress would have preferred our remedy.

II.

Several considerations convince us that, were the Court's constitutional requirement

added onto the Sentencing Act as currently written, the requirement would so

transform the scheme that Congress created that Congress likely would not haveintended the Act as so modified to stand. First, the statute's text states that "[t]he

court" when sentencing will consider "the nature and circumstances of the offense

and the history and characteristics of the defendant." 18 U. S. C. A. §3553(a)(1)

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(main ed. and Supp. 2004). In context, the words "the court" mean "the judge

without the jury," not "the judge working together with the jury." A further statutory

provision, by removing typical "jury trial" evidentiary limitations, makes this clear.

See §3661 (ruling out any "limitation ... on the information concerning the

[offender's] background, character, and conduct" that the "court ... may receive").

The Act's history confirms it. See, e.g., S. Rep. No. 98-225, p. 51 (1983) (the

Guidelines system "will guide the judge in making" sentencing decisions) (emphasisadded); id., at 52 (before sentencing, "the judge" must consider "the nature and

circumstances of the offense"); id., at 53 ("the judge" must conduct "a

comprehensive examination of the characteristics of the particular offense and the

particular offender").

This provision is tied to the provision of the Act that makes the Guidelines

mandatory, see §3553(b)(1) (Supp. 2004). They are part and parcel of a single,

unified whole -- a whole that Congress intended to apply to all federal sentencing.

This provision makes it difficult to justify Justice Stevens' approach, for that

approach requires reading the words "the court" as if they meant "the judge working

together with the jury." Unlike Justice Stevens, we do not believe we can interpret

the statute's language to save its constitutionality, see post, at 16 (Stevens, J.,

dissenting), because we believe that any such reinterpretation, even if limited to

instances in which a Sixth Amendment problem arises, would be "plainly contrary to

the intent of Congress." United States v. X-Citement Video, Inc., 513 U. S. 64, 78

(1994). Without some such reinterpretation, however, this provision of the statute,along with those inextricably connected to it, are constitutionally invalid, and fall

outside of Congress' power to enact. Nor can we agree with Justice Stevens that a

newly passed "identical statute" would be valid, post, at 13 (dissenting opinion).

Such a new, identically worded statute would be valid only if (unlike the present

statute) we could interpret that new statute (without disregarding Congress' basic

intent) as being consistent with the Court's jury factfinding requirement. Compare

post, at 13-14 (Stevens, J., dissenting). If so, the statute would stand.

Second, Congress' basic statutory goal -- a system that diminishes sentencing

disparity -- depends for its success upon judicial efforts to determine, and to base

punishment upon, the real conduct that underlies the crime of conviction. That

determination is particularly important in the federal system where crimes defined

as, for example, "obstruct[ing], delay[ing], or affect[ing] commerce or the

movement of any article or commodity in commerce, by ... extortion," 18 U. S. C.

§1951(a), or, say, using the mail "for the purpose of executing" a "scheme or artifice

to defraud," §1341 (2000 ed., Supp. II), can encompass a vast range of very differentkinds of underlying conduct. But it is also important even in respect to ordinary

crimes, such as robbery, where an act that meets the statutory definition can be

committed in a host of different ways. Judges have long looked to real conduct when

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sentencing. Federal judges have long relied upon a presentence report, prepared by a

probation officer, for information (often unavailable until after the trial) relevant to

the manner in which the convicted offender committed the crime of conviction.

Congress expected this system to continue. That is why it specifically inserted into

the Act the provision cited above, which (recodifying prior law) says that

"[n]o limitation shall be placed on the information concerning the background,

character, and conduct of a person convicted of an offense which a court of the

United States may receive and consider for the purpose of imposing an appropriate

sentence." 18 U. S. C. §3661.

This Court's earlier opinions assumed that this system would continue. That is why

the Court, for example, held in United States v. Watts, 519 U. S. 148 (1997) (per

curiam), that a sentencing judge could rely for sentencing purposes upon a fact that a

jury had found unproved (beyond a reasonable doubt). See id., at 157; see also id., at152-153 (quoting United States Sentencing Commission, Guidelines Manual

§1B1.3, comment., backg'd (Nov. 1995) (USSG), which "describes in sweeping

language the conduct that a sentencing court may consider in determining the

applicable guideline range," and which provides that " `[c]onduct that is not

formally charged or is not an element of the offense of conviction may enter into the

determination of the applicable guideline sentencing range' ").

The Sentencing Guidelines also assume that Congress intended this system tocontinue. See USSG §1B1.3, comment., backg'd (Nov. 2003). That is why, among

other things, they permit a judge to reject a plea-bargained sentence if he determines,

after reviewing the presentence report, that the sentence does not adequately reflect

the seriousness of the defendant's actual conduct. See §6B1.2(a).

To engraft the Court's constitutional requirement onto the sentencing statutes,

however, would destroy the system. It would prevent a judge from relying upon a

presentence report for factual information, relevant to sentencing, uncovered after the trial. In doing so, it would, even compared to pre-Guidelines sentencing, weaken

the tie between a sentence and an offender's real conduct. It would thereby

undermine the sentencing statute's basic aim of ensuring similar sentences for those

who have committed similar crimes in similar ways.

Several examples help illustrate the point. Imagine Smith and Jones, each of whom

violates the Hobbs Act in very different ways. See 18 U. S. C. §1951(a) (forbidding

"obstruct[ing], delay[ing], or affect[ing] commerce or the movement of any article or

commodity in commerce, by ... extortion"). Smith threatens to injure a co-worker

unless the co-worker advances him a few dollars from the interstate company's till;

Jones, after similarly threatening the co-worker, causes far more harm by seeking far

more money, by making certain that the co-worker's family is aware of the threat, by

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arranging for deliveries of dead animals to the co-worker's home to show he is

serious, and so forth. The offenders' behavior is very different; the known harmful

consequences of their actions are different; their punishments both before, and after,

the Guidelines would have been different. But, under the dissenters' approach, unless

prosecutors decide to charge more than the elements of the crime, the judge would

have to impose similar punishments. See, e.g., post, at 2-3 (Scalia, J., dissenting).

Now imagine two former felons, Johnson and Jackson, each of whom engages in

identical criminal behavior: threatening a bank teller with a gun, securing $50,000,

and injuring an innocent bystander while fleeing the bank. Suppose prosecutors

charge Johnson with one crime (say, illegal gun possession, see 18 U. S. C. §922(g))

and Jackson with another (say, bank robbery, see §2113(a)). Before the Guidelines,

a single judge faced with such similar real conduct would have been able (within

statutory limits) to impose similar sentences upon the two similar offenders despite

the different charges brought against them. The Guidelines themselves wouldordinarily have required judges to sentence the two offenders similarly. But under

the dissenters' system, in these circumstances the offenders likely would receive

different punishments. See, e.g., post, at 2-3 (Scalia, J., dissenting).

Consider, too, a complex mail fraud conspiracy where a prosecutor may well be

uncertain of the amount of harm and of the role each indicted individual played until

after conviction -- when the offenders may turn over financial records, when it

becomes easier to determine who were the leaders and who the followers, when

victim interviews are seen to be worth the time. In such a case the relation betweenthe sentence and what actually occurred is likely to be considerably more distant

under a system with a jury trial requirement patched onto it than it was even prior to

the Sentencing Act, when judges routinely used information obtained after the

verdict to decide upon a proper sentence.

This point is critically important. Congress' basic goal in passing the Sentencing Act

was to move the sentencing system in the direction of increased uniformity. See 28

U. S. C. §991(b)(1)(B); see also §994(f). That uniformity does not consist simply of similar sentences for those convicted of violations of the same statute -- a uniformity

consistent with the dissenters' remedial approach. It consists, more importantly, of

similar relationships between sentences and real conduct, relationships that

Congress' sentencing statutes helped to advance and that Justice Stevens' approach

would undermine. Compare post, at 18 (dissenting opinion) (conceding that the

Sixth Amendment requirement would "undoubtedly affect `real conduct' sentencing

in certain cases," but minimizing the significance of that circumstance). In

significant part, it is the weakening of this real-conduct/uniformity-in-sentencingrelationship, and not any "inexplicabl[e]" concerns for the "manner of achieving

uniform sentences," post, at 2 (Scalia, J., dissenting), that leads us to conclude that

Congress would have preferred no mandatory system to the system the dissenters

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envisage.

Third, the sentencing statutes, read to include the Court's Sixth Amendment

requirement, would create a system far more complex than Congress could have

intended. How would courts and counsel work with an indictment and a jury trial

that involved not just whether a defendant robbed a bank but also how? Would the

indictment have to allege, in addition to the elements of robbery, whether thedefendant possessed a firearm, whether he brandished or discharged it, whether he

threatened death, whether he caused bodily injury, whether any such injury was

ordinary, serious, permanent or life threatening, whether he abducted or physically

restrained anyone, whether any victim was unusually vulnerable, how much money

was taken, and whether he was an organizer, leader, manager, or supervisor in a

robbery gang? See USSG §§2B3.1, 3B1.1. If so, how could a defendant mount a

defense against some or all such specific claims should he also try simultaneously to

maintain that the Government's evidence failed to place him at the scene of thecrime? Would the indictment in a mail fraud case have to allege the number of

victims, their vulnerability, and the amount taken from each? How could a judge

expect a jury to work with the Guidelines' definitions of, say, "relevant conduct,"

which includes "all acts and omissions committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the defendant; and [in the

case of a conspiracy] all reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity"? §§1B1.3(a)(1)(A)-(B). How

would a jury measure "loss" in a securities fraud case -- a matter so complex as to

lead the Commission to instruct judges to make "only ... a reasonable estimate"?

§2B1.1, comment., n. 3(C). How would the court take account, for punishment

purposes, of a defendant's contemptuous behavior at trial -- a matter that the

Government could not have charged in the indictment? §3C1.1.

Fourth, plea bargaining would not significantly diminish the consequences of the

Court's constitutional holding for the operation of the Guidelines. Compare post, at

3 (Stevens, J., dissenting). Rather, plea bargaining would make matters worse.

Congress enacted the sentencing statutes in major part to achieve greater uniformityin sentencing, i.e., to increase the likelihood that offenders who engage in similar

real conduct would receive similar sentences. The statutes reasonably assume that

their efforts to move the trial-based sentencing process in the direction of greater

sentencing uniformity would have a similar positive impact upon plea-bargained

sentences, for plea bargaining takes place in the shadow of (i.e., with an eye towards

the hypothetical result of) a potential trial.

That, too, is why Congress, understanding the realities of plea bargaining,authorized the Commission to promulgate policy statements that would assist

sentencing judges in determining whether to reject a plea agreement after reading

about the defendant's real conduct in a presentence report (and giving the offender

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an opportunity to challenge the report). See 28 U. S. C. §994(a)(2)(E); USSG

§6B1.2(a). This system has not worked perfectly; judges have often simply accepted

an agreed-upon account of the conduct at issue. But compared to pre-existing law,

the statutes try to move the system in the right direction, i.e., toward greater

sentencing uniformity.

The Court's constitutional jury trial requirement, however, if patched onto the present Sentencing Act, would move the system backwards in respect both to tried

and to plea-bargained cases. In respect to tried cases, it would effectively deprive the

judge of the ability to use post-verdict-acquired real-conduct information; it would

prohibit the judge from basing a sentence upon any conduct other than the conduct

the prosecutor chose to charge; and it would put a defendant to a set of difficult

strategic choices as to which prosecutorial claims he would contest. The sentence

that would emerge in a case tried under such a system would likely reflect real

conduct less completely, less accurately, and less often than did a pre-Guidelines, aswell as a Guidelines, trial.

Because plea bargaining inevitably reflects estimates of what would happen at trial,

plea bargaining too under such a system would move in the wrong direction. That is

to say, in a sentencing system modified by the Court's constitutional requirement,

plea bargaining would likely lead to sentences that gave greater weight, not to real

conduct, but rather to the skill of counsel, the policies of the prosecutor, the

caseload, and other factors that vary from place to place, defendant to defendant, and

crime to crime. Compared to pre-Guidelines plea bargaining, plea bargaining of thiskind would necessarily move federal sentencing in the direction of diminished, not

increased, uniformity in sentencing. Compare supra, at 7-8 with post, at 18 (Stevens,

J., dissenting). It would tend to defeat, not to further, Congress' basic statutory goal.

Such a system would have particularly troubling consequences with respect to

prosecutorial power. Until now, sentencing factors have come before the judge in

the presentence report. But in a sentencing system with the Court's constitutional

requirement engrafted onto it, any factor that a prosecutor chose not to charge at the plea negotiation would be placed beyond the reach of the judge entirely. Prosecutors

would thus exercise a power the Sentencing Act vested in judges: the power to

decide, based on relevant information about the offense and the offender, which

defendants merit heavier punishment.

In respondent Booker's case, for example, the jury heard evidence that the crime had

involved 92.5 grams of crack cocaine, and convicted Booker of possessing more

than 50 grams. But the judge, at sentencing, found that the crime had involved anadditional 566 grams, for a total of 658.5 grams. A system that would require the

jury, not the judge, to make the additional "566 grams" finding is a system in which

the prosecutor, not the judge, would control the sentence. That is because it is the

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prosecutor who would have to decide what drug amount to charge. He could choose

to charge 658.5 grams, or 92.5, or less. It is the prosecutor who, through such a

charging decision, would control the sentencing range. And it is different

prosecutors who, in different cases -- say, in two cases involving 566 grams -- would

potentially insist upon different punishments for similar defendants who engaged in

similar criminal conduct involving similar amounts of unlawful drugs -- say, by

charging one of them with the full 566 grams, and the other with 10. As long asdifferent prosecutors react differently, a system with a patched-on jury factfinding

requirement would mean different sentences for otherwise similar conduct, whether

in the context of trials or that of plea bargaining.

Fifth, Congress would not have enacted sentencing statutes that make it more

difficult to adjust sentences upward than to adjust them downward. As several

United States Senators have written in an amicus brief, "the Congress that enacted

the 1984 Act did not conceive of -- much less establish -- a sentencing guidelinessystem in which sentencing judges were free to consider facts or circumstances not

found by a jury or admitted in a plea agreement for the purpose of adjusting a base-

offense level down, but not up, within the applicable guidelines range. Such a one-

way lever would be grossly at odds with Congress's intent." Brief for Senator Orrin

G. Hatch et al. as Amici Curiae 22. Yet that is the system that the dissenters' remedy

would create. Compare post, at 18 (Stevens, J., dissenting) (conceding asymmetry

but stating belief that this "is unlikely to have more than a minimal effect").

For all these reasons, Congress, had it been faced with the constitutional jury trialrequirement, likely would not have passed the same Sentencing Act. It likely would

have found the requirement incompatible with the Act as written. Hence the Act

cannot remain valid in its entirety. Severance and excision are necessary.

III.

We now turn to the question of which portions of the sentencing statute we must

sever and excise as inconsistent with the Court's constitutional requirement.Although, as we have explained, see Part II, supra, we believe that Congress would

have preferred the total invalidation of the statute to the dissenters' remedial

approach, we nevertheless do not believe that the entire statute must be invalidated.

Compare post, at 22 (Stevens, J., dissenting). Most of the statute is perfectly valid.

See, e.g., 18 U. S. C. A. §3551 (main ed. and Supp. 2004) (describing authorized

sentences as probation, fine, or imprisonment); §3552 (presentence reports); §3554

(forfeiture); §3555 (notification to the victims); §3583 (supervised release). And we

must "refrain from invalidating more of the statute than is necessary." Regan, 468 U.S., at 652. Indeed, we must retain those portions of the Act that are (1)

constitutionally valid, id., at 652-653, (2) capable of "functioning independently,"

Alaska Airlines, 480 U. S., at 684, and (3) consistent with Congress' basic objectives

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in enacting the statute, Regan, supra, at 653.

Application of these criteria indicates that we must sever and excise two specific

statutory provisions: the provision that requires sentencing courts to impose a

sentence within the applicable Guidelines range (in the absence of circumstances

that justify a depa

united states v. booker, 543 u.s. 220 (2004)

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